SZRQZ v Minister for Immigration
[2012] FMCA 1141
•19 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRQZ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1141 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – show cause hearing held pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) – applicant sought to cavil with the Tribunal’s findings – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 476 Federal Magistrate Court Rules 2001 (Cth), r.44.12 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 |
| First Applicant: | SZRQZ |
| Second Applicant: | SZRRA |
| Third Applicant: | SZRRB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1606 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 19 November 2012 |
| Date of Last Submission: | 19 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2012 |
REPRESENTATION
| First Named Applicant: | In person |
| Second and Third Named Applicants: | No appearance |
| Appearing for the Respondents: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 24 July 2012 is dismissed pursuant to r.44.12(1)(a) of the Federal Magistrate Court Rules 2001 (Cth).
The first and second named applicants pay the first respondent’s costs set in the amount of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1606 of 2012
| SZRQZ |
First Applicant
| SZRRA |
Second Applicant
| SZRRB |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore: Revised From Transcript)
I have before me an application made on 24 July 2012, pursuant to s.476 of the Migration Act1958 (Cth), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 June 2012, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the first named applicant, her husband (“the second named applicant”) and her child (“the third named applicant”).
When the matter was called today, the Minister sought that it be dealt with on the basis contemplated by Pt.44 of the Federal Magistrate Court Rules 2001 (Cth) (“the Rules”). I agreed in the circumstances that it was appropriate that the Court proceed pursuant to r.44.12 of the Rules. I say this because the applicants, as a result of what occurred on the previous Court occasion, were on notice of the possibility of the Court proceeding in this fashion. In spite of this, nothing has been put before the Court by way of an amended application, or any evidence, to advance the case that was put initially in the application to the Court.
Background
The first and second named applicants before the Court are wife and husband. Their child, who is a minor, is the third named applicant and was born in Australia in July 2009. All of the applicants are citizens of Bangladesh. In July 2011, the first named applicant (“the applicant”) applied for a protection visa. The second and third named applicants, applied as members of her family unit.
Claims to Protection
The applicant’s initial claims to protection were set out in a statement attached to the visa application form (CB 41 – CB 42).
In essence, the claims were derived from her claimed participation in the student wing of the Bangladesh Nationalist Party (“the BNP”), her claimed political activities, and the fear of harm that she claimed from the opponents of the BNP, namely, the Awami League (CB 41).
For current purposes today it is not necessary to go into great detail about the applicant’s claims to fear persecution. However, it is important to note that the applicant claimed to have worked on behalf of the BNP in an executive position. She first travelled to Australia in 2008, but returned to Bangladesh. She subsequently returned to Australia. In essence, the applicant’s claim was that because of her past political involvement, she and her family would not be safe in Bangladesh (CB 42).
The Delegate
The applicant attended an interview with the Minister’s delegate, on 10 October 2011, at which time she provided supporting documentation (CB 46 – CB 61). The delegate accepted that the applicant was a member of the BNP, however, found that her profile within the party was not at a level such as to attract adverse interest (CB 73.8 – CB 74.2). On this basis the Minister’s delegate concluded that the applicant did not hold a well-founded fear of persecution in the Refugees Convention sense and, therefore, refused the protection visa applications (CB 62 – CB 75).
The Tribunal
On 20 December 2011, the applicants applied to the Tribunal for a review of the delegate’s decision (CB 76 – CB 80). The Tribunal invited the applicants to a hearing on 24 April 2012 (CB 82 – CB 83). In May 2012 the Tribunal wrote to the applicants inviting them to comment on, or respond to, information which it said would be the reason, or a part of the reason, for affirming the decision under review. (CB 117 – CB 118). I note from the material before the Court, that the applicant responded to that invitation (CB 119 – CB 120).
On 29 June 2012, the Tribunal affirmed the delegate’s decision (CB 155 – CB 174). Ultimately, the Tribunal had concerns about the applicant’s credibility ([94] at CB 170). The Tribunal noted that the applicant had omitted “important matters” from her earlier factual account of past events. Namely, that she had received threats from the Awami League on her return to Bangladesh in May 2008, and that a false case had been taken out against her ([95] at CB 170).
The Tribunal noted the applicant’s explanation for these omissions. However, it rejected that explanation on the basis that those particular claims were critical to the applicant’s protection visa application and that it would be unlikely that she would have been advised, as she claimed, to omit those claims on the basis that she could “add more” at a later stage ([96] at CB 170). The Tribunal concluded that the applicant’s claim that she had been given such advice was an attempt to conceal this discrepancy ([97] at CB 170).
Further, the Tribunal found that the documentation the applicant provided in support of her claim that a false claim had been made against her in Bangladesh, was on information provided to the Australian Department of Foreign Affairs, not genuine. Consequently the Tribunal did not give weight to it ([98] at CB 170 and [119] at CB 173) and, therefore, concluded that that claim was not credible ([100] at CB 170 – [102] at CB 171).
As a result of this the Tribunal disbelieved all of the applicant’s claims and found there was no credible reason why the applicant left Bangladesh in August 2008, returned, and then left again in January 2011 to travel to Australia. The Tribunal could not find any credible reason why the applicant did not wish to return to Bangladesh ([105] at CB 171).
Importantly, the Tribunal accepted that the applicant had been involved in some political activity in both Bangladesh and Australia ([106] at CB 171 and [108] – [109] and [110] at CB 172). However, it found that her involvement was at a “low level” and for which she did not face any harm ([110] at CB 172). Therefore, if she were to return to Bangladesh, and even resume those activities in the same way as she had done in the past, that would not amount to any well-founded fear of persecution ([111] and [113] at CB 172).
I should also note that the Tribunal addressed the question of complementary protection, as found in s.36(2)(aa) of the Act. The Tribunal found that there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm ([123] – [124] at CB 174).
Application to the Court
The application to the Court is in the following terms:
“1. The Second Respondent made jurisdictional error not considering that the applicant had a real fear of persecution upon returning to Bangladesh.
2 The Second Respondent has investigated about the applicant’s involvement in politics and found it was true.
3 The Second Respondent accepted a number of issues in saying that ‘the Tribunal accepts certain of the claims made in those letters’ and the Tribunal treated the applicant as a low level worker of the party. However, persecution does not limited with low level or high level worker.”
[Errors in the original.]
Before the Court
This matter first came on before the Court on 8 August 2012. At that time, the applicant appeared in person and was assisted by an interpreter in the Bengali language. At that time I appointed the applicant as the litigation guardian for her child. Also I explained, or I sought to explain, the process of judicial review and the different role that the Court played to that of the Tribunal. I emphasised to the applicant that the grounds as pleaded in her application were deficient for the purposes of her application to the Court, and did not assert, let alone seek to reveal, jurisdictional error on the part of the Tribunal. I consequently emphasised that it is the case that without such error the applicants cannot succeed before the Court.
I also sought to emphasise for the applicant that the Court did not have the power to determine if she and her family were refugees. Nonetheless, given that the applicant appeared unrepresented before the Court, I took steps to cause the applicant to be referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. Before the Court today the applicant confirmed that she did attend at a conference with this lawyer. Relevantly, I note that on the Court’s file there is a Certificate from Mr Cameron Jackson, of counsel, indicating that he met with the applicant and that written advice was provided.
At the first Court date I also made orders giving the applicants the opportunity to file and serve any amended application and any evidence in support. I explained to the applicant that if legal grounds were properly articulated in an amended application, when the matter was next before the Court then it may be that it would be set down for a final hearing. However, if nothing further was put before the Court, as is now the case, then the matter could proceed to be resolved at that time by way of a “show cause”, or other, hearing.
When the matter was called today, the applicant appeared in person. She confirmed that she sought to represent her husband’s interests and, of course, to also represent her child’s interests as litigation guardian. She was assisted by an interpreter in the Bengali language. Ms M Johnson appeared for the first respondent.
Given that the applicants have chosen to put nothing further to the Court beyond what was before the Court on the first occasion, and given the nature of what was alleged in that initial application, I agreed with Ms Johnson that the appropriate course today was to proceed to what is colloquially known as a “show cause” hearing, pursuant to r.44.12 of the Rules. The question, therefore, for the Court now becomes one of whether the applicants have raised an arguable case for the relief that they claim.
When given the opportunity to address the Court, the applicant read from a prepared statement. She essentially stated that she could not get a “real” judgment from the Tribunal, that she did not understand matters of points of law, but did not have sufficient funds to pay a lawyer to give her advice. It must be said that I found such a submission difficult to accept given that the Australian taxpayer paid for just that opportunity to be provided to the applicant. It is not clear to me what further opportunity to obtain legal advice the applicant was denied.
The applicant has had the opportunity to understand the nature of these proceedings and to obtain advice about whether the Tribunal’s decision contained any error of law. It is not for the Court to speculate as to what that advice may have been. However, the applicant’s acknowledgement that she did attend at the conference with Mr Jackson is sufficient to satisfy the Court that she was given the opportunity which she now says that she was not able to obtain through other means.
Ground One
Ground one of the application asserts that the Tribunal made a jurisdictional error by not considering that the applicant held a real fear of persecution if returned to Bangladesh. No particulars were provided to this ground.
Taken plainly, the assertion is a statement of fact and, given that there are no particulars, there is nothing that can be said beyond that statement of fact. Nothing can be found to say that it asserts any legal error on the part of the Tribunal. Just what the jurisdictional error is, is not explained. It is quite apparent that what the applicant really challenges is the Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution.
Given that it is the case that the Tribunal made findings of fact that were reasonably open to it on what was before it, and for which it gave cogent reasons, a challenge to the conclusion of the Tribunal based on these findings really seeks to cavil with the findings and the outcome of those findings. The applicant really seeks that the Court engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). To the extent that this is also a direct challenge to the outcome of the Tribunal’s consideration, then it is the case that applicants before the Tribunal are entitled to a “fair hearing” not necessarily a “fair outcome” (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25]).
It is important to note that from the only relevant evidence available to the Court, that is what is contained in the Tribunal’s decision record and the relevant material in the Court Book, the Tribunal did set out the complete suite of the applicant’s claims and evidence in support of her assertion to fear persecution in Bangladesh ([20] at CB 159 – [32] at CB 161 and [39] at CB 162 – [92] at CB 169). I cannot see that the Tribunal failed to address any aspect of the applicant’s claim ([93] at CB 170 – [128] at CB 174). It is the case that, ultimately, the Tribunal could not reach the requisite, statutorily imposed, level of satisfaction in order for the protection visas to be granted (ss.65 and 36(2) of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). To the extent that the Tribunal made a finding adverse to the applicant’s credit, then such a finding is within the Tribunal’s jurisdiction as the decision-maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).
It is the case that ground one cannot in any way be seen as raising an arguable case. It is so clearly only a challenge to the factual findings and conclusions made by the Tribunal.
Ground Two
Similarly ground two is also a statement of fact. Again, there are no particulars provided to point to any possible legal error on the part of the Tribunal. At best for the applicant, it appears that the complaint here is that because the Tribunal found that the applicant had been involved in political activity in Bangladesh, then it should have found that the applicant met the definition of “refugee”.
Again, this misunderstands the test that is required to be considered, and is statutorily imposed, on the Tribunal. It is the case that the Tribunal did find that the applicant had been involved in some political activity. However, it also found, for reasons given, that such activity would not attract the adverse interests of the applicant’s claimed political opponents. The fact that the Tribunal accepted that part of the applicant’s claims does not mean that it then must automatically accept that the applicant falls within the definition of “refugee”. The mere fact of some level of political activity, in the Tribunal’s view, was not such as to enable it to reach a level of satisfaction as to a well-founded fear of persecution, as those concepts are understood in law (see the authorities cited in [26] above).
I can see no basis for any assertion of any legal error on the part of the Tribunal in this regard. Again, this was a finding of fact by the Tribunal made within jurisdiction and on the evidence that was before it. Further, and yet again, it would appear that such a claim seeks to cavil with the Tribunal’s factual findings (Wu Shan Liang). Again, no arguable case has been raised here.
Ground Three
Ground three appears to be, in essence, a restatement of ground two but with the additional complaint that “persecution” is not limited to whether a person is a “low” or “high level” worker in the political context. That assertion, of course, is quite correct, as far as it goes. Each case clearly turns on its own merits. But, in the circumstances of this case, the Tribunal’s reasoning, and the findings which flowed from that reasoning focus on the acceptance that the applicant did undertake “… low level political activities but for which she did not receive any form of harm” in the past ([110] at CB 172).
Given that this was the only part of the applicant’s claims that the Tribunal accepted, and that the applicant had not received any harm in relation to such activities in the past and, in the absence of anything else, the Tribunal was not satisfied that the applicant would face persecution if she were to return to Bangladesh in the reasonably foreseeable future. Particularly in circumstances where it was satisfied that, if anything, the applicant would, on her evidence, continue to operate at that same level.
Before the Court today the applicant made no attempt to explain what is implicit in this last sentence of ground three. How her “low level” of political involvement was such as to have amounted to persecution or, more particularly, as to why the Tribunal’s analysis in coming to the conclusion that it did in this regard was infected with some legal error. It is the case that here, again, the ground as pleaded does not raise an arguable case for the relief that the applicant seeks.
Conclusion
Nothing that the applicant has said to the Court adds to the grounds as initially pleaded. In effect, nothing has changed from when the applicant first appeared before the Court. What the Court is left with is an application which, both in terms of its initial statement and taking into account what the applicant said to the Court today, still remains, an application that does not raise an arguable case for the relief sought. The only course open to the Court in those circumstances is to make an order dismissing the application to the Court. I will make such an order.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 3 December 2012